Indian Supreme Court Abandoned Mass Victims Of State Abuse During 1975-77; So, Must Apologise

                          By 

Dr. P.S. Sahni & Shobha Aggarwal

On 25th June, 1975 the then Prime Minister of India, Mrs Indira Gandhi imposed a state of Internal Emergency primarily to stay in power; earlier the Allahabad High Court had unseated her in a petition filed by a political rival Mr. Raj Narain who had challenged her election to LokSabha for election malpractices. The developments that followed constitute one of the darkest chapters in the history of India. The sufferings, humiliation and torture of people under this dictatorial regime continued for a period of twenty-one months. Fear was sought to be instilled through the mid-night knock by the police force; custodial torture was all too frequent and cases of disappearance like that of Rajan remain a chilling reminder of those times. Over a hundred thousand people were thrown in jails without trial using preventive detention laws like Maintenance of Internal Security Act (MISA) and Defence of India Rules (DIR); this included practically the entire class of opposition members of Parliament, trade union leaders; university students, karamcharis and professors; journalists; ordinary men and women; social and political activists. Press censorship was imposed. Some publications stopped bringing out their newspapers/magazines rather than submit to pre-censorship. However the vast majority of journalists and owners of media houses succumbed to political pressure. The All India Radio and the Doordarshan of course were under governmental control and churned out propaganda material day in and day out. Rumours had a field day. People disturbed by these developments would meet at ‘safe’ public places, look over their shoulder to ensure that police informers and intelligence bureau personnel were not hanging around; even then talks would be in whispers. Handmade posters with political messages were pasted surreptitiously at public places; leaflets printed at safe printing presses were passed on as part of resistance movement; but invariable even this, too, resulted in arrests.

In Delhi alone over 700,000 people residing in slums and even pucca houses were uprooted without any prior notice; the Muslim houses and shops in Old Delhi were targeted. Bulldozers were used to demolish hutments and dwelling units. Even police firing was resorted to, killing and maiming the poor and the hapless who as much as resisted the demolition. These people were dispatched to open land on the periphery of the entire city where resettlement colonies were sought to be built. Social activists – who ‘dared’ to hand over a memorandum to Sanjay Gandhi, the son of the Prime Minister and an extra-constitutional authority – were got arrested and sent to Tihar Jail. There were no avenues for justice; hence the underground resistance movement.

A program of mass vasectomy was pursued with utmost zeal; several million people including unmarried ones were subjected to this physical and psychological trauma. Thousands died during or after surgery. The police with the help of local Congress goons would round up people for vasectomy and bring them to hospitals in police vans. The issue of consent for vasectomy was not even addressed to, converting it into a compulsory family planning drive.

Since most opposition members of Parliament were jailed; and press faced ruthless censorship, some daring people in detention resorted to writ petitions in High Courts; equally brave and liberty loving judges in nine High Courts entertained these petitions. These High Courts sent a message that even after the declaration of an Emergency a detenue could challenge his detention. The Supreme Court overruled these nine High Courts in the habeas corpus case – bulldozing the consensus opinion expressed by the nine High Courts. Out of the five Supreme Court judges only one, Justice H.R. Khanna dissented. A para out of his dissenting judgement need to be always remembered:

“Supposing a law is made that in the matterof the protection of life and liberty, the administrativeofficers would not be governed by any law and that it wouldbe permissible for them to deprive a person of life andliberty without any authority of law. In one sense, it mightin that event be argued that even if lives of hundreds ofpersons are taken capriciously and maliciously without theauthority of law, it is enforcement of the above enactedlaw. As observed by Friedmann… in a purely formal sense, any system ofnorm based on a hierarchy of orders, even the organised massmurders of Nazi regime qualify as law.”

[Additional District Magistrate Jabalpur v. Shivakant Shukla, 1976]

Postscript

• A division bench of the Supreme Court speaking through Justice Gangulyin Remdeo Chauhan @ Rajnath Chauhan vs. Bani Kant Das & Others opined:

There is no doubt that the majority judgment of this court in the ADM Jabalpur case (supra) violated the fundamental rights of a large number of people in this country. Commenting on the majority judgment, Chief Justice Venkatachalliah in the Khanna Memorial Lecture delivered on 25.2.2009, observed that the same be ‘confined to the dustbin of history.’

Delivered in the year 2010 this judgement was pronounced on November 19 – the birth anniversary of Indira Gandhi!

• However it would still be a year before Justice P.N. Bhagwati, one of the authors of the infamous 1976 judgement said sorry with ifs and buts thrown in for good measure. On 16 September 2011, speaking to the Indian Express, Justice P.N. Bhagwati said:

“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice (H R) Khanna did. I am sorry (for the judgment) …

“Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.”

A Ray of Hope

A positive scene emerging globally is the belated apologies offered by the Supreme Court judges for their erroneous decisions through their earlier judgements dating back to several decades. Just two examples should suffice.

Firstly, in September 2013 Chile’s Judges apologized for their passive complicity with the Pinochet regime. In 1970 Salvador Allende  became the President of Chile through open elections. Augusto Pinochet staged a coup on September 11, 1973 and toppled the socialist Salvador. The military regime under Pinochet ruled Chile with an iron fist till 1990. It suppressed political parties, persecuted dissidents; suspended the 1925 constitution;banned tradeunions; used media to promote anti-democratic policies; limited civil rights of people; severely curtailed freedom of the press. The judiciary became a mere spectator and lost its independence. The Chilean courts rejected about 5000 cases seeking assistance to locate missing loved ones/ abducted/or killed. The Chilean Judges’ Association in a statement almost forty years after the coup said:

“To those who are victims of state abuse … the time has come to ask for the forgiveness of victims … and of Chilean society.

… It must be said and recognized clearly and completely: the court system and especially the Supreme Court at that time, failed in their roles as safeguards of basic human rights and to protect those who are victims of state abuse.” [Merco Press September 5, 2013]

Secondly, in Japan the Supreme Court apologized for discriminatory treatment of its leprosy patients. The Japan Times issue dated April 25, 2016 reported:

The Supreme Court apologized Monday to former leprosy patients for allowing lower courts to hold criminal trials involving them outside standard courtrooms over ungrounded fears about the spread of infection, saying such false practices were unlawful and further accelerated discrimination.

In a 60-page report, the top court stated that “discriminatory handling was strongly suspected” for special trials held after 1960, and violated the laws governing court procedures. It said the Supreme Court granted lower courts permission to hold such trials at sanitariums and other facilities for leprosy patients without fully examining each case.

… As for the constitutional right of the principle of equality, Supreme  Secretary-General YukihikoImasaki only said its violation was “strongly suspected.” Such discriminatory practices “encouraged prejudice and discrimination against the patients, and furthermore, impaired their integrity and dignity,” the report said. “(We) deeply regret it and apologize to the patients.”

The Indian Supreme Court never tires of asking for apology for this or that inanity usually for some perceived contempt of court. The Supreme Court ought to cultivate and demonstrate its sensitivity to its earlier decisions which were contemptuous of the people of India. The judges of the Supreme Court are servants of the people. In a democracy it is the people who are supreme. About time the Supreme Court en banc tenders an unconditional apology to the mass victims of state abuse during 1975-77, as also to the entire people of India.

[The writers are members of PIL Watch Group (non-funded, non-party) and can be contacted at: pilwatchgroup@gmail.com]

Release Kashmiri Political Prisoners Languishing In Jails

By Dr. P.S. Sahni & Shobha Aggarwal

17 June, 2016
Countercurrents.org

Syed Ali Shah Geelani, Chairman, All Parties Hurriyat Conference has appealed to the people to observe solidarity with the Kashmiri prisoners on Friday the 17 June, 2016. Geelani has called the continuous imprisonment of pro-freedom leader Masarat Alam Bhat since 2010 as extremely cruel. He lamented the silence of the State Government as also of the State High Court, which could have taken suomotu action for getting MasaratAlam released.

He has demanded:

i. Release of all the political prisoners including the pro-freedom leaders before Eid.

ii. That status of the pro-freedom leaders who are serving life imprisonment and other political prisoners lodged in Tihar Jail, Delhi as well as a Kashmiri detainee in Gujarat Jail should be accepted as that of political prisoners and has demanded their unconditional release.

iii. Release of dozens of Tehreek-e-Hurriyat leaders arrested under preventive detention.

iv. Provision of basic amenities to prisoners as also treatment of ill prisoners in the jails.

Geelanihas appealed to the human rights organizations to ensure the release of Kashmiri prisoners.The aforementioned demands are just, long-standing and democratic. This is the bare minimum that the Jammu and Kashmir (J & K) state authorities and the High Court could ensure as a first step.

Continued incarceration of Masarat Alam in jail, inspite of bail

The significant and eye-opening pronouncements made by the Chief Judicial Magistrate (CJM), Budgam, MasaratRohee while granting bail to MasaratAlamon 25 May, 2016 in a case (FIR 92/2015)registered at police station Budgam against him for ‘sedition’charges are a slap on the face of the authorities.Masarat Alam in this particular case was arrested in April 2015 after Pakistani flags were raised at Geelani’s rally.

The court observed:

* “In toto, 27 cases have been registered and if 90 days are given to each case, it would amount to 6 years and 7 months before the accused sees the light of the day from the dungeons.”

* “If the accused is anti-national and detrimental to the society and public at large, let the state discharge its duty by bringing the guilty to book so that they are punished suitably as per the mandate of law.”

* “However, despite the fact that the State alleges the accused to be anti-national, the right of the accused as guaranteed by the constitution under principles of natural justice cannot be denied indefinitely.”

* “If such a trend is sanctioned by the courts of law and the law interpreted in that manner, the way Ld CPO seeks the same to be interpreted, the might of state with an approximate number of more than 200 Police stations throughout the state of J & K with every Police station registering an FIR, granting 90 days of exhaust remand in each FIR, before the accused reaches the Court of law trial, he would have already spent 49 years and 3 months in jail.”

* “Thus negating the whole presumption of innocence of the accused as guaranteed to him by the law. Such acts of the state not only weaken the criminal justice system but also create an alienation between the state and its population where it become 'us' and 'them' and an individual no longer feels himself to be the part of the state.”

* “The fact remains that the accused is involved in the offences as alleged in the FIR, but the accused has not only been detained for 90 days but many 90 days commencing from 15.4.2015 and is under continuous detention ever since without trial despite a high powered SIT investigating the same which is not likely to conclude within reasonable time, yet the fact remains that the lodgment of the accused in Baramulla Sub-Jail is sufficient enough to substantiate that out of 27 FIRS only two are under investigation in District Baramulla.”

* “The custody of the accused being requisitioned by Police station Shaheedgunj, though the Police station Shaheedgunj do not require him for custodial interrogation in Police remand but seek his detention in judicial custody is enough to hold that accused is not required by the investigation but needs to be incarcerated in judicial custody, extra judicially.”

* “This kind of custody in the opinion of this Court amounts to extra judicial custody which cannot be sanctioned by any legal means. Therefore, keeping the above facts, observation and submission in view the accused is named in case FIR No. 92/2015 of Police station Budgam is released on bail.”

The CJM had observed that even cases since 1999 and 2006 were still pending investigation; and that only in 12 out of 27 cases challan has been produced while 15 cases are still being investigated.

Masarat Alam, of course, continues to be in jail inspite of the bail order. In any case the aforementioned quotes from the judgement delivered by the CJM should be made compulsory reading for all law students, lawyers, judges, social and political activists and all those who cherish freedom. One has to constantly remind oneself that these quotes are not from a Report of Amnesty International/ Human Rights Watch/ civil liberties and democratic rights bodies in India; nor are these quotes the outpourings of “decadent communists”. So something must be fundamentally wrong with the criminal justice system which permits scores of cases to be filed and kept pending against political activists even as all the norms and procedures of Anglo-Saxon jurisprudence are smashed to smithereens. The political dispensation in Delhi needs to be reminded that it is not just the likes of MasaratAlam who are on trial; in the final analysis it is the higher judiciary as also the Indian democracy which is on trial; and the whole world watches with concern. Even the fourth pillar of Indian democracy viz the so called free press gets ultra-nationalistic and indulges in biased and untruthful reporting.In fact the mainstream journalists in India covering Kashmir function no different from the American embedded journalists covering the war on Iraq, Afghanistan and so on.

Masarat Alam has spent more years in jail than Jawaharlal Nehru and Mohandas Karamchand Gandhi did individually during the freedom struggle. The British dealt with these establishment freedom fighters as befits their status and role as freedom fighters. The Indian state treats the frontline leaders struggling for right to self-determination of Kashmiri people with utter contempt. Recently the Prime Minister of India referred to overcoming the “hesitations of history” while delivering his speech at the joint session of U.S. congress on 8 June, 2016. Could he extend this doctrine in relation to Kashmir and resolve the long standing issues? As a first step he could instruct the BharatiyaJanata Party in J & K – a coalition partner with the Peoples Democratic Party– to ensure that Kashmiri political prisoners are released.

[The writers are members of PIL Watch Group and have been campaigning for ‘bail not jail’. Email: pilwatchgroup@gmail.com]

As the judgment is not available on the website of the court till date, the quotes from the judgement are reproduced from the newspaper Greater Kashmir issue dated 15 June, 2016.

Genetically MODIfied Babies In Gujarat?

By Shobha Aggarwal & Dr. P.S. Sahni

13 June, 2016
Countercurrents.org

“If there are two daughters born in the home, and the third child born is also a daughter, then she is told, now I want a son, so get another wife. Even if the fault is with the man, the entire burden of the fault is on the woman’s head, and so our government and I have decided that for all such problems, there should be a special hospital, where families can come and there would be research on why, for what reason, back-to-back daughters are born… there are some families that have two sons and the home wants a daughter…”

“…There are physically deformed children being born and miscarriages that are stressful. I keep listening to these stories. But today, there is technology. I can assure you that this can be treated in the womb… All such women who are pregnant… families who give birth to speech- and hearing-impaired and physically challenged children… On the one hand, there will be a hospital where such mothers can go… and by sonography they can be treated, and on the other hand there can be research on such families to find out what is the reason behind this? Whose DNA should be changed to get rid of these problems? Therefore in this year’s budget, a woman and child care hospital will be ready in Ahmedabad in eight months which will solve these problems.” (emphasis provided)

- Anandiben Patel, Chief Minister of Gujarat, India told a MahilaSammelan in PaviJetpur in ChhotaUdepur on the occasion of Gujarat Foundation Day.
(Indian Express, May1, 2016)

Genetically modified babies in Gujarat? That’s a bombshell! There has been neither any national debate on the issue; nor any consultation with stake-holders; Parliament is being by-passed as no corresponding law on the subject has been enacted;the Indian Council of Medical Research (ICMR) is taken by surprise;so too, the Indian Medical Association of allopathic doctors. No scientific-ethical studies have been undertaken before going ahead with genetically modified babies. With just one country (U.K.) in the whole world having legislated on this issue in 2015, is India being projected as the second country to start genetic modification of babies. Is this part of Make in India policy? There is deathly silence of the so called national press on the issue; there are no op-ed articles or editorials in major national English language dailies.

A duly elected Chief Minister of a State swearing by the Indian Constitution ought to follow a policy whereby boys and girls are treated equally. It should not be the business of the government to enter the bedrooms of citizens and ensure birth of a boy (or rarely girl) in a family! Let Nature perform its role. On the other hand equal respect should be accorded to couples who opt not to have a child or are infertile. The cause of infertility lies in the female (1/3rd cases), male (1/3rd cases) and both male and female in the remaining 1/3rd of the cases. It should be the duty of the government to hammer the point so that there is no blame-game within the family. As females have XX chromosomes and the males have XY chromosomes, it is the Male Y chromosome that is responsible for the gender of the foetus and women are not to be blamed. Such information needs to be widely and publicly disseminated. This is the job of the State government. Besides, adoption should be encouraged amongst infertile couples, LGBTQ community and single people.

If – as the Chief Minister of Gujarat has expressed – the services of the medical establishment are used to ensure a couple gets a son after one or two daughters, then the bias against the girl-child is all too patent. There is no need to expend resources to diagnose why couples continue to have daughters only. This, anyway, cannot be part of state policy.In any case as per the 2001 census report there were 920 females to 1000 males in Gujarat; this was brought down to 919 females to 1000 males as per 2011 census report. Of course both the figures are less than the national average of 940 females to 1000 males as per 2011 census report. The concern should be to have more females. The Chief Minister of Gujarat has cleverly talked of a situation where a couple desperately wants to have a girl after one or two boys. This is an exceptional/isolated case. It has been juxtaposed in her publicly aired comments to hide the real purpose of ensuring a boy is born after one or two girls – which strengthens the stigma against the girl-child.

In the early 1980’s the ICMR – the apex medical body for conducting medical research – started amniocentesis and ultrasonography (USG) tests on pregnant women to detect congenital defects/anomalies in the foetus. The side-effect of this project was the emergence of large scale, unregulated use of USG on a commercial basis to detect the gender of the foetus; of course female foetuses got aborted. Around 0.7 million cases of female foeticide occur annually in India!So much for the hum-bug of detection of congenital anomalies in the foetuses!

Earlier during the Internal Emergency period 1975-77 under the then Prime Minister of India, Mrs. Indira Gandhi a programme of population control through vasectomy emerged as the brain child of Sanjay Gandhi – the son of the PM and an extra-constitutional body. Millions of forcible vasectomies were performed; even un-married or very old men were operated upon. Michael Egnor in his post ‘The Inconvenient Truth About Population Control, Part 2; Science Czar John Holdren's Endorsement of Involuntary Sterilization’ writes:

“The Indian sterilization program, based on principles that Holdren explicitly endorsed in his textbook, sterilized 8 million people -- 6.2 million men and 2 million women against their will. There were 1,774 deaths due to botched sterilization procedures, according to the government's own statistics. Strong legal penalties were instituted against people who resisted, including denial of irrigation water to farmers, denial of food rations, electricity, and medical care. The principle of the Indian socialist government's sterilization program was, "Who refuses sterilization shall not eat." Popular outrage at the population control atrocities played a major role in the fall of the government in elections in 1977, and it continues to play a significant role in Indian politics to this day.

Dr. Holdren, who is now President Obama's top science advisor, explicitly endorsed the Indian government's forced sterilization of millions of men.”

Lessons from history of eugenics

Hitler was to some extent inspired by forced sterilization program of California – which by 1933 was in the forefront amongst all other U.S. states combined in undertaking maximum number of forceful sterilizations. The Nazis targeted prisoners, dissidents, physically disabled persons, deaf and blind, and homosexuals. Over four hundred thousand people were forcibly sterilized; and more than three hundred thousand killed under a euthanasia program. Nazi Germany had enacted the ‘Law for the Protection of Hereditarily Diseases Offspring’ on July 14, 1933. Under this law the duly constituted Genetic Health Court could decide if a citizen suffered from a genetic disorder – the vast majority of which were not even genetic – and to forcibly sterilize such a citizen. The financial support of the Rockefeller foundation and the technological inputs of Dehomag – a subsidiary of IBM in that period of history – is well documented. Once the Nuremberg laws were passed in 1935, it was mandatory for marriage partners to get tested to exclude hereditary diseases. All this was undertaken to ensure the alleged purity of the Aryan race.

A progressive section of western scientists and thinkers have lately drawn attention to the following significant facts, observation and opinions:

i. Genetically modified crops/animals already exist; but in the large number of trials that failed, the results of the unwanted crops/animals could just be thrown away without much ethical consideration.

ii. The uncertainty which genetic modification involves – prevention of one genetic disease may trigger another one.

iii. The importance of environmental influence on health deserves to be addressed; once the environmental factors are improved the DNA would function in the best possible ways.

iv. For a stable community, diseases and variability in a population are a must as emphasized by Thomas Malthus in the eighteenth century. While presently the research is reportedly confined to genetically modifying the mitochondrial DNA, but sooner rather than later the nuclear DNA would also be subjected to manipulation. This would in the long run lead to crash of human population.

The state of Gujarat stands completely polarized along religious lines. One of the most violent anti-reservation stir took place there in the early 1980s. The anti-Muslim pogrom of 2002 has been compared to genocide of Muslims. If the socio-political environment is suffused with biases and hatred towards the subordinate castes and religious minorities and people are at tenterhooks all the while, the chance of infants being born with congenital anomalies, as also still-births and abortions is increased. True, the genetic factors are important. The Gujarat government should ensure peace and tranquility; treat all citizens as equal; provide security to the vulnerable sections of society. The plan to have a hospital for genetically modifying babies in Gujarat should be shelved.

In India the caste-system actually translates to a primitive eugenic concept. Even the political leaders, who were in the fore-front of movement against the British rulers, were wary of dismantling the caste-system. There is no reason why present-day politicians should be allowed to get genetic modification program operational in India. Instead inter-caste, inter-religion, inter-racial marriagesshould be encouraged to have a healthy genetic pool in the general population.

[Shobha Aggarwal & Dr. P.S. Sahni are members of PIL Watch Group and can be contacted at: pilwatchgroup@gmail.com]

The Contempt Of Courts Law Unleashes Terror, Suppresses Freedom Of Expression And Shields Corrupt And Inefficient Judges

By Dr. P.S Sahni

08 June, 2016
Countercurrents.org

On 24 April, 2016, the Chief Justice of India lamented about the backlog of cases in the courts to be at a staggering figure of over 3 crores (30 million). His misty eyes captured in the print media said it all. The image of an emotional Chief Justice got embedded in the psyche of sensitive citizens.

The Indian constitution embodies upon every citizen the duty to develop a spirit of enquiry and reform. Moreover as members of PIL Watch Group – a non-funded, non-party organization – we are mandated to keep a check on the accountability and transparency of the judiciary. Outlined below are two cases of complaints against two sitting judges of the Delhi High Court and the response of the establishment to these complaints.

Case no. 1

On 5 January, 2014 PIL Watch Group had sent a complaint against a sitting judge of the Delhi High Court to the then Chief Justice of India; Chief Justice, Delhi High Court; President of India; and Union Minister of Law and Justice. The name of the judge is being withheld so that the debate is on the content of the complaint without inviting contempt charges. The pertinent points raised in the complaint were:

• Justice A has indulged in conduct which on the face of it is unethical and unbecoming of a sitting judge. Whether it is illegal or not requiring impeachment is a matter which can be decided only after a detailed enquiry is conducted into the matter.

• Justice A’s earlier residential-cum office address is well known among the lawyers and his earlier clients – as he was elevated from the bar. (The property is still owned by Justice A). Recently on a visit to the area PIL Watch Group was shocked to see that a law firm is running from this very address. The building adorns the name plates of Justice A; of his father, another well known lawyer of his time along with the name plate of a law firm. It was shocking to say the least and we wondered since when have sitting high court judges been allowed to practice law also simultaneously.

• Further research on Delhi High Court website showed that the law firm started filing cases in Delhi High Court only since 2013. Apparently the law firm moved to its present location in 2011. While the internal details of the working and functioning of the firm, its past dealings and understanding with Justice A are not known to us, the following questions beg an answer:

1. Is a law firm running from a sitting judge’s property not utilizing the goodwill of the judge?

2. Does not the fact that the judge’s name plate is still on the building further gives the impression to the prospective litigant that there is an understanding between the judge and law firm?

3. How does one compute the financial gains received by the law firm just by being in that building and using the judge’s name plate even if there is no other understanding?

4. If the building is rented to the law firm why is the name plate of Justice A still there? Isn’t there an ulterior motive?

5. Has Justice A heard any case as a judge filed by this law firm / or its associates? Only a detailed enquiry into all the cases filed by the law firm and cases related to any of its clients filed through other advocates would be able to establish the truth of the matter.

6. If the area in which the property falls is residential use zone than is the property not being misused by Justice A?

7. Is this not directly or indirectly even more unethical than what Judge Soumitra Sen had done?

PIL Watch Group urged for a high level enquiry to be conducted urgently into the matter and appropriate action taken.

Needless to say that till date we have neither received an acknowledgement nor a reply from the authorities even after two and a half years! It is not known whether an enquiry was initiated and what action if any has been initiated against the concerned judge. Doubts also arise as to whether the complaint reached the W.P.B.!

In the aforementioned complaint detailed as case no. 1 we had not made the matter public through the print or visual media. In any case 99.99 % of the journalists are terrified of writing on such complaints as the sword of contempt law hangs over their heads. However we at PIL Watch Group made a field study of Justice A’s property on 6 March, 2014 and found that judge’s nameplate had been removed from the said house. Also the sign board of the law firm had been replaced with the signboard of an individual lawyer. Whether this is the result of the action taken on our complaint or destruction of evidence is yet to be determined. However, only the members of PIL Watch Group are aware of the developments. We have not received any communication from the authorities so far which means the 135 crore people in India would never get to know about our complaint as also what surreptitiously had been done by the judge concerned. The contempt law effectively shields the judges – both honest as well as dishonest ones – from the consequences of any wrong doing. It is said that sunlight is the best sanitizer. Why then should the shenanigans of judges be kept out of public domain simply by the threat of the contempt law? This is at the cost of suppressing the right of freedom of expression of the citizens.

Journalists in India function under the threat of contempt proceedings and hence the misconduct/misdoings of judges escape public scrutiny. Unlike judges in western countries, the Indian judges appoint themselves and also stay insulated from public gaze. The law of contempt in India functions like a de facto MISA in continuous operation without any formal announcement as far as the journalists and other public spirited citizens are concerned.

Clandestine procedure for handling complaints against judges

On 31 March, 2014 an RTI activist filed an application with the Delhi High Court asking interalia the following questions:

1. What is the in house procedure for handling complaints relating to judicial impropriety against a sitting judge of the Delhi High Court?

2. What is the procedure for handling complaints relating to judicial impropriety against a retired judge of the Delhi High Court committed during his/her tenure as a sitting judge?

3. What is the procedure for handling complaints relating to judicial impropriety against judges of Delhi Higher Judicial Service and Delhi Judicial Service?

For the next two years the Delhi High Court did not furnish the replies on the ground of this or that technicality, which anyway was found to be of no consequence by the Chief Information Commissioner (CIC). It was only in May 2016 on the orders of the CIC that the Delhi High Court sent the following reply:

1. In House procedure for handling complaints is available on the website of the Supreme Court of India.

2. No such information is available on record.

3. Complaints against Officers of Delhi Higher Judicial Services and Delhi Judicial Services may be addressed to the Hon’ble Chief Justice of Delhi High Court.

Thus for two long years citizens were even deprived of this basic information; even as of date the website of the Delhi High Court does not contain this information. A ten-paged document on the Supreme Court website alone gives this simple but useful information. Even a net-savvy citizen would be hard put to reach this ten-paged document as the title preceding the information is “Report of the Committee on In-House Procedure”.

It is apparent even to a novice that there is a conscious effort by the authorities to keep the information a secret. So much for the transparency of the institution of Indian judiciary! It is just as well to add that in the Vishakha judgement (1997) dealing with the sexual harassment at workplace the court had prescribed guidelines and norms for protection of women from sexual harassment at workplace. It took the Supreme Court of India another 16 years before a system was put in place to deal with sexual harassment cases in the Supreme Court and this too needed the public spiritedness of two women lawyers to coax the court into action! Around that time the complaints of sexual harassment against two retired Supreme Court judges surfaced in the media.

Case no. 2

On 30 March, 2016 a complainant sent a communication to the Chief Justice of India elaborating on the case disposal rate of a sitting judge of the Delhi High Court. The highlights of the complaint include:

• The judge sits in court for hardly one hour a day and that too is spent on giving public lecture to the lawyers and litigants as to how administrative work keeps the judge busy.

• The judge’s disposal rate is the lowest.

• All matters in the judge’s court are simply adjourned. In the month of January 2016 the bench presided over by the judge disposed off only nine matters. Two were dismissed as withdrawn. Two matters were disposed off by a common judgement and three others by a judgement each and two more by orders. The four judgements are of ten, four, eleven and thirty-three pages. Two matters disposed of by orders are in two and three pages respectively. In the whole month only sixty-three pages were dictated.

• Performance in the month of February 2016 is only seven disposals five by judgements and two by orders, one of which pronounced in court on 18.02.2016 did not get uploaded on the website till 30.03.2016. The five judgements and one order authored in February 2016 totals only forty-eight pages.

The complainant had used the data available on the official Delhi High Court website. Ironically the complainant had only urged the Chief Justice of India to ensure that the concerned judge sits in court for the full duration of five hours i.e. from 10.30 a.m. to 1.15 p.m. and thereafter from 2.15 p.m. to 4.30 p.m.

The communication was quoted in a news item published in The Times of India dated 17 May, 2016 under the byline of Mr. Abhinav Garg – a journalist with an impeccable record of integrity, honesty and professionalism. (The name of the judge was mentioned in the news report, though we are withholding it in this article). The complainant was ostensibly forced to make the matter public as no action was taken on the complaint dated 30.03.2016 by the authorities. The publication of the disposal rate of cases of one judge of the Delhi High Court (a micro study in effect) let slip the dogs of war. The concerned journalist – moved by the image of weeping CJI over pendency of cases – had contempt proceedings initiated against him and was made to tender an unconditional apology. Ironically before filing the story the journalist had contacted the concerned judge who declined to comment. The journalist had even verified from the High Court website that the numbers cited by the complainant are accurate. Till date no lawyer in the whole country has disputed the substance of the complaint pertaining to disposal rate etc. A handful of senior advocates harped upon getting an unconditional apology from the newspaper rather than reply to the substance of the complaint. Evidently the data provided by the complainant is indisputable. Even so the Delhi High Court Bar Association passed a resolution on 18.05.2016 condemning the publication of the said article!

From the two cases detailed above certain conclusions emerge:

• If a complaint is sent to the authorities about a certain judge and the authorities do not act within a reasonable period of time (say six weeks) the complainant is inclined to make the issue public as in Case 2.

• Case 1 sends a message that when a complaint is made about a judge to the authorities, the chances are that there would be no acknowledgement or communication sent to the complainant even at the end of two and a half years.

So if the complainant goes to the media after waiting for a reasonable period of time the publication carrying the complaint would face contempt proceedings as in Case 2. The casualty in these situations is the freedom of expression. The most pertinent question is being swept under the carpet in Case 2 viz why did the authorities not take any action on the complaint for one and a half months? The normal practice adopted in a democracy is to send a complaint and wait for a reasonable period before making it public; the point of decision to go public is that the complaint is not being looked into.

Case 2 above shows that just by raising an issue of how many hours a judge spends in just one court in India or by making public the disposal rate of cases creates a storm in a teacup. We at PIL Watch Group are conducting a study into the number of hours judges are functioning in their courts. To begin with we chose the Tis Hazari District Courts, Delhi (said to be the largest court in Asia). On 25.05.2016 we conducted a survey by physically entering the court rooms in all the floors where the courts function and seeing for ourselves whether the judge is sitting in court or not. The visit was conducted between 11.40 a.m. to 2.35 p.m. (minus the lunch break from 1.30 p.m. to 2 p.m.). We chose the peak time when maximum number of judges are expected to be holding court. In about 30% of the courts visited the judges were not sitting in the court room. Would the Chief Justice of India please take note of this? Could we expect the judges in the District Courts to be holding court six hours a day minus half an hour for lunch? We feel that the case disposal rate would improve considerably if even this basic step is implemented. Why can’t an exercise similar to the one conducted by us be undertaken by court-appointed commissioners along with members of civil society all over the country? The debate on over 3 crore (30 million) pending cases should not lose track of this vital reform which has to come from within the judiciary.

Finally we urge the Chief Justice of India to expunge the contempt proceedings against Mr. Abhinav Garg from the record of the Delhi High Court.

[Dr. P.S. Sahni is the Secretary of PIL Watch Group and can be contacted at: pilwatchgroup@gmail.com]